The 10th Amendment provides that, if the Constitution doesn’t give a power to the national authorities or take that power away in the states, that power has been reserved for the states or the people themselves. The Supreme Court has interpreted this provision to bar the federal government from”commandeering” the countries to enforce national laws or policies. Now the justices ruled that a federal law which bars states from legalizing sports gambling violates the anti-commandeering doctrine. Their choice not only opens the door for states around the country to allow sports gambling, but it also can give considerably more power to states generally, on issues ranging from the decriminalization of marijuana to sanctuary cities.
The federal law at issue in the case is the skilled and Amateur Sports Protection Act, which dates back to 1992. The legislation, called PASPA, bans most states from (among other things) authorizing sports betting; it carved out an exception that could have allowed New Jersey to set up a sports-betting strategy in the state’s casinos, provided that the state did so within a year. But it required New Jersey 20 years to behave: In 2012, the state legislature passed a law which legalized sports betting.
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The National Collegiate Athletic Association and the four major professional sports leagues went into court, asserting that the 2012 law breached PASPA. The lower federal courts agreed, prompting the New Jersey legislature to go back to the drawing board. In 2014, it passed a new law which rolled back present bans on sports betting, at least since they applied to New Jersey casinos and racetracks. The NCAA and the championships returned to court, asserting that the new law also violated PASPA, along with the U.S. Court of Appeals for the 3rd Circuit ruled against the state.
The Supreme Court agreed to consider that the state’s constitutional challenge to PASPA, and now the court reversed. In a decision by Justice Samuel Alito, the court began by explaining that the”anticommandeering doctrine may seem arcane, but it’s simply the expression of a basic structural conclusion integrated into the Constitution” –“that the decision to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is precisely the problem with the supply of PASPA that the nation challenged, which bars states from authorizing sports betting: It”unequivocally dictates exactly what a state legislature could and might not perform.” “It is like” the majority indicated,”federal officers were installed in state legislative chambers and were armed with the ability to stop legislators from voting on any busting proposals. A more direct affront to state sovereignty,” Alito reasoned,”is not easy to envision.”
The court also rejected the argument, created by the leagues as well as the national authorities, that the PASPA provision barring states from authorizing sports betting doesn’t”commandeer” the states, but rather merely supersedes any state laws that conflict with the provision — a legal doctrine known as pre-emption. Pre-emption, most explained,”is based on a national law which regulates the behaviour of private actors,” but “there is just no way to understand the provision prohibiting nation authorization as anything aside from a direct command to the States,” which”is exactly what the anticommandeering rule does not allow.”
Having ascertained the PASPA provision barring states from authorizing sports gambling is unconstitutional, the majority then turned to the question which followed by that decision: Should the rest of PASPA be struck down as well, or will the legislation endure with no anti-authorization provision? In legal terms, the query is called”severability,” and today six of the seven justices — Alito along with Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan and Neil Gorsuch — who also consented the PASPA anti-authorization supply was unconstitutional also agreed that the whole law should fall. They concluded that, if the pub on countries authorizing or licensing sports betting had been invalid, it could be”most unlikely” that Congress would have wanted to continue to stop the states from running sports lotteriesthat were regarded as”much more benign than other kinds of betting.” Similarly, the majority posited, if Congress had known that the pub on state authorization or performance of sports gambling will be struck down, it wouldn’t have desired the concurrent ban on the performance of sports-betting schemes by private entities to continue. The PASPA provision barring the advertising of sports gambling met the same fate; differently, the court explained,”national law could forbid the promotion of an activity that is legal under both state and federal legislation, and that’s something that Congress has seldom done.”
The majority acknowledged that the question of whether to legalize sports betting”is a contentious one” that”requires a significant policy choice.” But that choice, nearly all continued,”is not ours to make. Congress can control sports betting right, but if it elects not to do so, every State is free to act by itself.”
Justice Clarence Thomas filed a concurring opinion in which he focused not on the substance of this court’s judgment but instead on a rather abstract legal question: the viability of the court’s present severability doctrine. Thomas made clear that he combined the majority’s decision striking down most PASPA since”it gives us the best response it could to this question, and no party has asked us to apply a different test.” However he suggested that the court ought to, at some stage later on, rethink its severability doctrine, which he characterized as”suspicious” To begin with, he observed, the doctrine is contrary to the tools that judges normally use to translate laws since it takes a “`nebulous inquiry into hypothetical congressional purpose,”’ teaching judges to attempt to figure out what Congress would have wanted to do if a part of a law violated the Constitution, when”it appears unlikely that the enacting Congress had any intention on this query.” Secondly, he continued, the philosophy”often requires courts to weigh in on statutory provisions that no party has” a legal right to battle.
Justice Ruth Bader Ginsburg filed a dissenting opinion. Ginsburg did not elaborate on her apparent conclusion (joined in total by Justice Sonia Sotomayor) which PASPA’s bar on the authorization of sports betting by the states does not violate the Constitution. Instead, she contended (also with the support of Justice Stephen Breyer) that, even if PASPA’s anti-authorization provision is unconstitutional, the remaining portion of the law should remain in force. “On no logical ground,” Ginsburg emphasized,”is it concluded that Congress would have chosen no statute whatsoever if it couldn’t prohibit States from authorizing or licensing such strategies.”
New Jersey has long estimated that allowing sports gambling could revive the state’s struggling racetracks and casinos. In March of this year, ESPN projected that if New Jersey were to triumph, the country could have legal sports betting by the time football season kicks off in the fall; almost two dozen other nations are also considering bills that would allow sports gambling. The economic impact of allowing sports betting cannot be understated: Legal sports betting in Las Vegas takes in over $5 billion annually, and most estimates put the value of illegal sports betting in the United States at around $100 billion.
Now’s ruling may also have a much broader reach, potentially affecting a range of themes that bear little similarity to sports betting. By way of example, fans of so-called”sanctuary cities” — cities that refuse to cooperate with federal immigration officials to enforce immigration laws — have cited the 10th Amendment in late challenges to the federal government’s attempts to implement states on grants for state and local law enforcement. Challenges to the federal government’s recent efforts to enforce federal marijuana laws in countries that have legalized the drug for either recreational or medical use might also be dependent on the 10th Amendment.